Randy Spencer’s Open Mic:Diet-Coke And Insurance Law Forever Change Your Trip To The Supermarket

Last week, in a case being closely watched by consumer groups and retailers, the Supreme Court of New Hampshire held that a six-pack of Diet-Coke counted as six items for purposes of the Fifteen Items or Fewer check-out lane in the supermarket. The New Hampshire high court noted that the issue before it had nothing whatsoever to do with insurance law. Nonetheless, the court looked for guidance to the massive body of case law nationally, addressing the “number of occurrences” issue that frequently arises under general liability policies.

After examining decisions that have addressed the two principal “number of occurrences” tests – “cause” and “effect” -- and closely weighing the two methods, the court concluded that the effect test was most consistent with the objectives of the Express Lane. Continuing to take guidance from these coverage cases, the court analogized its decision to those where a court holds that injury or damage was caused by “multiple occurrences.”

Turning to the six pack of Diet-Coke, and viewing the issue through a multiple occurrences lens, New Hampshire’s highest court observed that, because cans of Diet-Coke were available for purchase separately in the store, it was appropriate to treat each can as a separate item. Otherwise, the court concluded, a consumer who purchases six individual cans of Diet-Coke – which would clearly qualify as six items -- would be treated differently than one who purchases six cans that just happen to be held together with a plastic carrier. To further explain its decision, the court stated that a dozen eggs would qualify as one item. While there are twelve eggs in a carton, eggs are not sold individually. Therefore, it is appropriate to treat the carton as just one item.

The New Hampshire Supreme Court was not unmindful that its decision would result in fewer shoppers being able to take advantage of the Express Lane. However, the court responded that this was entirely consistent with the purpose of such lane – allowing some consumers, that meet defined criteria, to complete their purchase and exit the store quickly. Adopting a rule that results in too many consumers having access to the Express Lane would frustrate its very purpose. For this reason it was appropriate to broadly construe the definition of “item” when that term is used in the Fifteen Items or Fewer check-out lane.

In a footnote, the court acknowledged that its new rule may be challenging to apply in the context of fruit. For example, if cherries are for sale individually, then cherry purchasers would effectively be prevented from ever using the Express Lane. However, noting the importance of judicial restraint, the court concluded that it would not address shopping scenarios that were not before it.

The high court remanded the case to the trial court to enter a judgment for plaintiff that he was rightly entitled to give the defendant a dirty look for having, by his count, eighteen items on the belt in the Express Lane.